Far right's secret SCOTUS strategy: What Boehner's lawsuit is really about

When a fringe party can no longer win legislative elections, boosting the impact of judges is its best last resort

By Heather Digby Parton


Published July 14, 2014 7:43PM (EDT)

Rand Paul, John Boehner, Ted Cruz                                                                        (AP/Ed Reinke/J. Scott Applewhite/Reuters/Jonathan Ernst)
Rand Paul, John Boehner, Ted Cruz (AP/Ed Reinke/J. Scott Applewhite/Reuters/Jonathan Ernst)

If you hadn't thought the House GOP had gone completely around the bend before, their decision last week to sue the president for failing to enforce a law they had all voted against and to which they remain adamantly opposed must have convinced you. They are actually suing the president because he delayed the health care mandate for small businesses — one of the most highly valued constituencies in the Republican Party. That's right, they are going to court to screw over one of their most prized voting blocs simply in order to challenge the limits of executive power. That's either a hard core commitment to principle or their desire to hurt the president is so overwhelming that they are willing to sacrifice their own voters in the process. (And one can't help but wonder just how dictatorial the president is actually being if the only example of his tyrannical policies they feel confident in citing is one they support.)

So why are they doing this? The most common assumption is that John Boehner is trying to head off impeachment. Evidently the crazies are getting very restless and the leadership thinks it would be a good idea to throw them some red meat just to keep them from jumping the fence. Having been more obstructionist than any minority party in history (keeping in mind that they only hold a majority in one house of Congress) they are now taking offense that the executive branch is moving ahead with its agenda the best it can. It's a very neat trick:

Mitch McConnell:The single most important thing we want to achieve is for President Obama to be a one-term president. George Will: "Serious as the policy disagreements roiling Washington are, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity, and qualitatively different."

Norms are funny things. Once you start breaking them it becomes very difficult to put them back together again. And these Republicans have been destroying norms for the past couple of decades, starting with the non-stop character assassination of President Clinton. They worked themselves into such a state of hysteria that they ended up impeaching him over a personal indiscretion. This was a nuclear action that had never been contemplated as a way to resolve political disputes. After all, a majority of the people had voted for the president and it should take something more than extracurricular hanky-panky to reverse that decision, particularly against their will.

Likewise, it was once considered absurd that any government official would blithely remark that his party's top priority was to deny the president a second term --- and then have the leadership proceed to rule the GOP caucus of both houses with an iron fist to insure that no one succumbed to an outbreak of bipartisanship. And from 2010 on, what was once the normal process of governance was pretty much a dead letter. So yes, "constitutional equilibrium" has been distorted and "institutional derangement" has been in full effect for some years now. But there's no question as to whether the GOP chicken or the Democratic egg is responsible for it. It may be true that President Obama has used executive powers in unprecedented way in some discrete instances but unless the presidency really is a ceremonial position or a potted plant, the GOP has left him no choice. Their bad faith is obvious.

Unfortunately, the more extreme elements of the Party have a taste for blood and it's unlikely they are going to settle for Boehner's lawsuit. Whether they can muster the energy for impeachment of Obama is another question. It's possible they're just sharpening up the knives for Hillary Clinton. "Benghazi!™" is probably just the amuse bouche.

In any case, heading off impeachment is likely the least of it. There could be a legitimate argument about whether the president had the power to do what he did. But as Jonathan Bernstein points out in this piece at Bloomberg View, members of the opposing party in Congress taking the president to court because they disagree with how he interprets a law is an unprecedented approach to litigating such questions. Normally, these cases are brought by citizens who can show standing. This suit, if it is allowed to go forward, would be a very big change to the constitutional system and, as Bernstein points out, it would vest a lot of new power in the Court:

Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts' ability to intervene. If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a a much more active role in determining what the laws say.

That would make the Court substantially more powerful than than the other two branches as it becomes the arbiter of disputes that would normally fall under the purview of the political system. Historically, if you don't like what a president is doing (or a Congress, for that matter) you take your complaint to the people and let them decide. It would appear that Speaker Boehner and the Republicans are cutting out the middle man -- us.

But there may be even more to this than simply empowering the Supreme Court (with its comparatively youthful conservative majority.) We know that the demographic changes in the electorate mean the Republicans are looking at a very difficult future in terms of national elections unless they are able to tame the radical beast they've created. Barring unforeseen circumstances, it is highly unlikely they will be able to win the presidency any time soon. But it's very possible that with their gerrymandered districts they could keep the House for some time to come and the undemocratic nature of the Senate insures that it can always be up for grabs.

And all of that is despite a Democratic national majority. After all, obstructing the federal government's ability to enact new programs and fund the ones that still exist while narrowing the executive branch's ability to act in domestic matters is the GOP agenda. And the fact is that it can be perfectly realized as a minority party. If they can put this last step in place --- having their conservative Supreme Court majority "arbitrate" on behalf of the Republicans in congress --- they could be in the driver's seat for some time to come. Whether the people like it or not.

By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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